Larry Catá Backer's comments on current issues in transnational law and policy. These essays focus on the constitution of regulatory communities (political, economic, and religious) as they manage their constituencies and the conflicts between them. The context is globalization. This is an academic field-free zone: expect to travel "without documents" through the sometimes strongly guarded boundaries of international relations, constitutional, international, comparative, and corporate law.

Wednesday, July 22, 2015

The Congressional-Executive Commission on China was created by the U.S. Congress in 2000 "with the legislative mandate to monitor human rights and the development of the rule of law in China, and to submit an annual report to the President and the Congress. The Commission consists of nine Senators, nine Members of the House of Representatives, and five senior Administration officials appointed by the President." (CECC About). It tends to serve as an excellent barometer of the thinking of political and academic elite sin the United States about issues touching on China and the official American line developed in connection with those issues. As such it is an important source of information about the way official and academic sectors think about China. The CECC FAQs provide useful information about the CECC. See CECC Frequently Asked Questions. As one can imagine many of the positions of the CECC are critical of current Chinese policies and institutions.

CECC has recently focused on recent police and other actions in China, especially the detention of certain high profile lawyers (see here). It's leaders, including Marco Rubio, an individual seeking nomination to stand as the representative of the Republican Party for President, have now focused on the issue of religion in China. The CECC has announced plans to hold hearings on "Religion With “Chinese Characteristics”: Persecution and Control in Xi Jinping’s China." The hearings appear meant to suggest both that China has approached the issue of the relationship between religion and the state differently from the West, and that this difference ought to be troubling when it affects the ability of the institutional apparatus of religions to control their government. Whatever one thinks of the statement, it represents an important position of the United States with respect to these issues and is likely to figure in U.S. China relations going forward.

With this post Flora Sapio
and I (and friends from time to time) continue an experiment in
collaborative dialogue. The object is to approach the issue of
philosophical inquiry from another, and perhaps more fundamentally
ancient, manner. We begin, with this post, to develop a philosophy for
the individual that itself is grounded on the negation of the isolated
self as a basis for thought, and for elaboration. This conversation,
like many of its kind, will develop naturally, in fits and starts. Your
participation is encouraged. For ease of reading Flora Sapio is
identified as (FS), and Larry Catá Backer as (LCB).

The friends continue their discussion in which Flora Sapio responds to the friends.

The history of the United States has been, if nothing else, a history of tremendous battles over the definition and control of the societal structures that define and discipline its politics, law, and culture--its sense of self as a polity and community. Those battles, in turn, might be understood as great efforts among groups people--the poor, women, ethnic, religious, racial and sexual minorities--to move from tolerance within a societal structures from which they have been excluded, to central elements of those social structures now transformed by their incorporation. Law, politics and culture changed as groups moved into societal spaces, even as groups sought to use law, politics and culture to either resist or compel such societal transformation.

A great site for these battles has been the educational institutions from which individuals are selected for advancement within political, economic, and other structures of authority. To change society from within, access to these critical societal sorting institutions are necessary. It is in that context that much attention has been devoted to the the legal and social norms of admissions decisions for universities. Affirmative action, neutrality, testing are among the proxies within which the greater conversation about societal place and power is waged.

With this post Flora Sapio
and I (and friends from time to time) continue an experiment in
collaborative dialogue. The object is to approach the issue of
philosophical inquiry from another, and perhaps more fundamentally
ancient, manner. We begin, with this post, to develop a philosophy for
the individual that itself is grounded on the negation of the isolated
self as a basis for thought, and for elaboration. This conversation,
like many of its kind, will develop naturally, in fits and starts. Your
participation is encouraged. For ease of reading Flora Sapio is
identified as (FS), and Larry Catá Backer as (LCB).

The friends continue their discussion in which Betita Horn Pepulim responds to the friends.

Saturday, July 18, 2015

Recent reports from our friends at the Conference Board suggest that, especially among large transnational enterprises that may feel the effects of pressure to conform to international business and human rights standards more strongly, U.S. enterprises are more strongly embracing these international business and human rights standards in their formal practices and policies. Matteo Tonello and Thomas Singer, Sustainability Practices 2015: Key Findings (Conference Board 2.015)

The report strengthens the arguments put forward over the last decade by John Ruggie and those supporting a strong zone of autonomous governance spaces for business that social norm systems may have a positive effect on corporate conduct, especially in the business and human rights field (see here, here and here). Of course, it is both to early to tell, and the relational direction of the data require more careful consideration. Still, the evidence strongly suggests a great gap between the sustainability and human rights cultures of European and U.S. companies. That gap is worth considering in substantially more detail.

The Conference Board Press Release, a summary of the key findings and information about the Conference Board Sustainability Practices Dashboard follow:

CECC has recently focused on recent police and other actions in China, especially the detention of certain high profile lawyers. It's leaders, including Marco Rubio, an individual seeking nomination to stand as the representative of the Republican Party for President, have issued a statement "ON PRESIDENT XI’S ‘INCREASINGLY BOLD DISREGARD FOR BASIC HUMAN RIGHTS'". Whatever one thinks of the statement, it represents an important position of the United States with respect to these issues and is likely to figure in U.S. China relations going forward. The statement follows.

Wednesday, July 15, 2015

I have suggested the ways in which the sites of law and power have been shifting away from a state centered system to one that is more diffuse (see here). As a consequence a number of non-state actors have emerged with law or norm making ambitions and the law making functions of states have become more porous. These changes have had an acute effect on the basis and exercise of democratic legitimacy in general, and has produced challenges to the relationship of representaiton as a legitimating basis of law and norm making. This challenge is particularly visible in the context of national and international efforts relating to the governance of the human rights obligations of business.

With this post Flora Sapio
and I (and friends from time to time) continue an experiment in
collaborative dialogue. The object is to approach the issue of
philosophical inquiry from another, and perhaps more fundamentally
ancient, manner. We begin, with this post, to develop a philosophy for
the individual that itself is grounded on the negation of the isolated
self as a basis for thought, and for elaboration. This conversation,
like many of its kind, will develop naturally, in fits and starts. Your
participation is encouraged. For ease of reading Flora Sapio is
identified as (FS), and Larry Catá Backer as (LCB).

The friends continue their discussion in which Flora Sapio responds to
Larry Catá Backer and Betita Horn Pepulim.

Friday, July 10, 2015

With this post Flora Sapio
and I (and friends from time to time) continue an experiment in
collaborative dialogue. The object is to approach the issue of
philosophical inquiry from another, and perhaps more fundamentally
ancient, manner. We begin, with this post, to develop a philosophy for
the individual that itself is grounded on the negation of the isolated
self as a basis for thought, and for elaboration. This conversation,
like many of its kind, will develop naturally, in fits and starts. Your
participation is encouraged. For ease of reading Flora Sapio is
identified as (FS), and Larry Catá Backer as (LCB).

The friends continue their discussion in which Betita Horm Pepulim and Flora Sapio respond to
Larry Catá Backer's point about the American Supreme Court's gay marriage decision, the individual, and coupling. language, and to the friends join in.

Wednesday, July 08, 2015

With this post Flora Sapio
and I (and friends from time to time) continue an experiment in
collaborative dialogue. The object is to approach the issue of
philosophical inquiry from another, and perhaps more fundamentally
ancient, manner. We begin, with this post, to develop a philosophy for
the individual that itself is grounded on the negation of the isolated
self as a basis for thought, and for elaboration. This conversation,
like many of its kind, will develop naturally, in fits and starts. Your
participation is encouraged. For ease of reading Flora Sapio is
identified as (FS), and Larry Catá Backer as (LCB).

The friends continue their discussion in which Flora Sapio responds to
Larry Catá Backer's point about language, and to the points raised by
Ulisses Schwarz Viana and Betita Horm Pepulim.

While most of the worlds is focused on the Greek debt crisis and its meaning for the character of sovereign debt generally, and the integrity of the Euro zone in particular, a wider conversation is now occurring with respect to sovereign lending. This conversation is grounded in two substantially distinct views of the nature and character of sovereign lending (see, e.g., here, and here). This conversation reflects the still deep divisions among the community of states relating to human rights and the nature of the global economic order (see, e.g., here).

Now comes the United Nations Independent Expert on Foreign Debt and Human Rights,

-->Juan Pablo Bohoslavsky,
with a statement, most likely read as a provocation in Beijing, about the nature of the emerging role of China as a sovereign lender. This comes on the heels of an earlier report on the nature of the complicity of sovereign lenders in the gross human rights violations of debtor states.

In March 2015 the Independent Expert on the effects of foreign debt on human rights submitted a report to the Human Rights Council (A/HRC/28/59) discussing the issue of financial complicity analysing the impact that lending may have on Governments engaged in gross human rights violations. The report intends to contribute to a better understanding of when financial support may contribute to, or sustain the commission of, large-scale gross human rights violations by sketching a rational choice framework premised on the incentives of authoritarian Governments and private and official lenders. In the report, the Independent Expert reviews the existing empirical evidence of the relationship between sovereign financing, human rights practices and the consolidation of Governments engaged in gross violations of human rights. Finally, the Independent Expert presents some interim conclusions and invites stakeholders to discuss them. The legal and policy implications of financial complicity will be discussed in a future study. (Press Release here;

-->Report of the Independent Expert on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of all human rights, particularly economic, social and cultural rights, Juan Pablo Bohoslavsky,
-->A/HRC/28/59
22 Dec. 2014; Read the report here).

That March report appears to serve as a background for the instant press release, and the Asian Infrastructure Investment Bank appears as a target. The press release “A human rights focus would upgrade China’s international lending” – UN expert on foreign debt follows in English and Chinese.

These actions have produced a storm of activity with partisans and
opponents of both resolutions quickly weighing in on the debate. I have spoken to the effort, suggesting both its limits and the likely failure of the enterprise, though not without some positive consequences for the effort (See here, here, here, here and here). Others have been more positive about this project (see, e.g., here).

The first session of the UN Human Rights Council’s Open-Ended Intergovernmental Working Group is currently underway, commencing 6 July and ending 10 July 2015, with sessions from 10:00 - 13:00 and 15:00 - 18:00 CEST daily. For those interested here are some useful resources:

For American Independence Day I have gotten into the habit of considering questions touching on the essence of American political ideology (e.g., Ruminations 52: Surmizing Liberty and Equality in American Political Ideology; Democracy Part 28/Ruminations 51: On the Contradiction of Voting, Democracy and Revolution in the U.S. and Egypt). But Americans don't think much in ideological terms; Americans think even less in historical terms, except perhaps to the extent necessary to reach back to a term useful in new ways for current debates. Americans invoke ideology instrumentally, especially in defense of their customs and traditions, or sometimes against them, in either case with sometimes profound effects. And sometimes Americans use their ideology strategically to manage or rework historical
perception--but only when it is practical, that is when it furthers some
political, social, economic or cultural objective with respect to which sufficient political mobilization can be cultivated.

So I have wondered how I might answer the following question were it ever posed by an individual who is not a U.S. national: how is it that the rules of symbolic speech in the United States can incorporate the national anthem of late Tsarist Russia as part of the climax of the national independence day celebrations, but erase other symbols whose origins might be equally problematic.

Thursday, July 02, 2015

Sara Seck is an Associate Professor at the University of Western Ontario. Professor Seck's research interests include corporate social responsibility, international environmental, human rights, and sustainable development law, climate change, and indigenous law. She is particularly interested in international and transnational legal theory, notably the relationship between Third World Approaches to International Law (TWAIL) and international legal process theories that are informed by constructivist understandings of international relations.

Professor Seck has recently been considering ramifications of the complexities of globalization and the effects of inbound and outbound investment on the problem of assigning state responsibility for managing CSR within global production chains. At the recent Madrid Workshop on a Business and Human Rights Treaty, Professor Seck spoke to "Business &; Human Rights Treaty Debate: Lessons from the International Law Commission" ("Ultimately, it would be wise to remember that the negotiation of a text –
whether a progressive codification of customary international law or a
newly agreed treaty text – is only the first step in the hard work of
international law making. This is a lesson that the ILC knows only too
well. It is also a lesson well known by international environmental
lawyers who have actively pushed for the negotiation of civil liability
treaties in various contexts, only to be confronted by the reluctance of
states to ratify and implement what has been agreed").

For her guest essay today, Professor Seck provides us with an excellent, timely, and provocative essay, Emerging Market Multinational Home States, Extractive Industries, and the Inside/Outside Problem. The essay seeks to bridge across the conceptual silos which produces the sort of conceptual fragmentation which at times has so fatally affected even the most modest efforts to move forward the necessary project of developing governance structures for the human rights effects of economic activity. Particularly significant here is the difficulty of developing coherent systems that cut across human rights and environmental protection, and that are made more complicated as states seek to develop one set of rules for outbound investment and another for domestic operations. The essay follows.

I have been considering issues of shared governance at the university for some time (e.g., here, here, here, and here). With my former student Nabih Haddad (M.I.A. Penn State), now a Ph.D. student at Michigan State University, we have been exploring the issue of the effects of more targeted philanthropy by powerful and ideologically committed donors on universities. Increasingly, powerful donors have sought to use their wealth to increase their influence in the provision of education and the operations of the university. This has caused controversy (e.g., here,here, here and here).

We have posted our examination of some of the issues involved in a just completed manuscript: " Philanthropy and the Character of the Public Research University—The Intersections of Private Giving, Institutional Autonomy, and Shared Governance." We expect that it will appear as chapter 3 in Facilitating Higher Education Growth through Fundraising and Philanthropy (H. C. Alphin Jr., J. Lavine, S. E. Stark & A.Hocke, eds., Hershey, PA: IGI Global, forthcoming 2015).

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Copyright; Citation and Attribution:

All essays are (c) Larry Catá Backer except where otherwise noted. All rights reserved. The essays may be cited and quoted with appropriate reference. Suggested reference as follows: Larry Catá Backer, [Essay Title], Law at the End of the Day, ([Essay Posting Date]) available at [http address].

The author holds a faculty appointment at Pennsylvania State University. Notice is hereby given that irrespective of that appointment, this blog serves as a purely personal enterprise created to serve as an independent site focusing on issues of general concern to the public. The views and opinions expressed here are those of its author. This site is neither affiliated with nor does it in any way state, reflect, or represent the views of Pennsylvania State University or any of its entities, units or affiliates.

Ravitch and Backer's Law and Religion: Cases, Materials, and Readings

3rd Edition 2015

Broekman and Backer, Signs in Law

Springer 2014

BACKERINLAW--PERSONAL WEBSITE

Here you can find my published work, manuscripts, presentations, and more!

Globalization Law and Policy Series from Ashgate Publishing

Globalization: Law and Policy will include an integrated bodyof scholarship that critically addresses key issues and theoretical debates in comparative and transnational law. Volumes in the series will focus on the consequential effects of globalization, including emerging frameworks and processes for the internationalization, legal harmonization, juridification and democratization of law among increasingly connected political, economic, religious, cultural, ethnic and other functionally differentiated governance communities. This series is intended as a resource for scholars, students, policy makers and civil society actors, and will include a balance of theoretical and policy studies in single-authored volumes and collections of original essays.

An interview with the Series EditorQueries and book proposals may be directed to:Larry Catá BackerW. Richard and Mary Eshelman Faculty Scholarand Professor of Law, Professor of International AffairsPennsylvania State University239 Lewis Katz BuildingUniversity Park, PA 16802email: lcb911@gmail.com

About Me

I hope you enjoy these essays. Each treats aspects of the relationship between law, broadly understood, and human organization. My essays are about government and governance, based on the following assumptions: Humans organize themselves in all sorts of ways. We bind ourselves to organization by all sorts of instruments. Law has been deployed to elaborate differences between economic organizations (principally corporations, partnerships and other entities), political organization (the state, supra-national, international, and non-governmental organizations), religious, ethnic and family organization. I am not convinced that these separations, now sometimes blindly embraced, are particularly useful. This skepticism serves as the foundation of the essays here. My thanks to Arianna Backer for research assistance.